The Tragic and Comedic Functioning of India’s Cyber Appellate Tribunal

Even as the Modi government pushes India towards a digital and cashless economy, the premier body for legally resolving cyber-fraud disputes is a practically non-functioning entity.

New Delhi: What recourse does the average Indian citizen have if they have been affected by cyber fraud? The ministry of communication and information technology’s Cyber Appellate Tribunal (CyAT)  was established in 2006 as “a specialised forum to redress cyber fraud”.

From 2011, however, the tribunal has barely been functioning. It still pays out salaries to its employees but no judicial order has been passed nor has any case been heard for the last five years. A recent Comptroller and Auditor General audit has noted that after the retirement of the CyAT’s last chairperson in June 2011, there has been no replacement appointed as of June 2016.

“However, members  and other staff continued to render services in the CyAT since then and expenditure of Rs. 27.64 crore were incurred on its establishment for the period from 2011-12 to 2015-16 without carrying out its primary business of hearing and disposal of appeals,” the CAG report notes.

That’s nearly Rs 30 crore spent on salaries and operating expenses without actually discharging its duties. India’s first and foremost destination for solving cyber fraud, the instances of which will only go up as the Narendra Modi government and the Niti Aayog aggressively push India towards digital and cashless payments, is a literal dead end.

The CyAT was initially set up as a statutory organisation, under the control of the IT ministry, in accordance with Section 48 (1) of the Information Technology Act, 2000. For the purposes of discharging its functions, the tribunal was vested with the same powers that are vested in a civil court.

According to its website, the tribunal is supposed to consist of a chairperson and a number of “other members as the Central Government may by notification in the official gazette appointment”. The selection of the chairperson and the tribunal’s members are also made by the Centre in consultation with the Chief Justice of India.

Around the dystopian rosie

The lack of a chairperson hasn’t stopped the Modi government from appointing other members over the last five years. In April 2015, the IT ministry appointed S.S. Chahar, an officer of the Indian Legal services, to assume the post of “Member (Judicial) Cyber Appellate Tribunal”.

Earlier this year, the president of India appointed Lieutenant Colonel Rajan Agarwal as “registrar in the office of the cyber appellate tribunal” in the “pay band of Rs 37,400 – Rs 67,000 + Grade pay Rs 8700” for a period of two years.

What does someone like Agarwal (and other members of the tribunal) do, if the CyAT has no chairperson and no cases are heard? Among other duties, they convene the tribunal roughly twice a month, look at the cases pending and immediately adjourn the matter to another date.

As one senior government official put it, it “would be funny if it wasn’t true”. The CyAT’s website has a “Daily Orders” section under which it records its essentially non-functioning functioning.

Take November 18, 2016. According to the tribunal’s case status notice, an appeal in the matter of Vodafone India Ltd versus Sh Prabhakar Sadekar and others was heard by the cyber tribunal. Counsel for the appellant Saransh Jain was present, according to the notice.

However, the matter was just quickly adjourned. As the notice below shows, Agarwal points out that “since the bench is not assembling due the non-availability of the Hon’ble Chairperson, this application is adjourned to December 9th, 2016”.

What happened on December 9? While the case status still isn’t publicly available, it presumably has simply been adjourned to yet another date. This is presumably happening to all 66 cases of appeals that were pending as of March 2016.

What next?

As the CAG aptly puts it: “The inaction of the Ministry [IT] defeated the very purpose for which CyAT was formed and also resulted into an expenditure amounting to `Rs. 27.64 crore for the period 2011-12 to 2015-16 on its establishment.”

According to senior banking officials – a decent chunk of the complaints and cases that come before the cyber tribunal are ordinary citizens who have filed cases against banks – the CyAT is largely seen as a joke.

Where then do most people go? Cyber frauds and cyber financial complaints have been rising, although there was a small dip in 2013. According to industry experts The Wire spoke to, most cyber fraud complaints are first lodged with banks, financial tech companies and even the RBI.

When they aren’t resolved through the organisation or financial institution in question, most customers head to either their local cyber-crime police cell or decide to go to a consumer forum or their local district or high court.

Most of these options are either time-consuming or logistical nightmares. The cyber-crime divisions of city police stations are often grappling with all sorts of cyber crime, including online harassment, in addition to cyber fraud. Going to a high court, most of which are already overburdened, takes time and patience.

New chairperson for CyAT?

The question then becomes: What’s stopping the IT ministry or the government from appointing a new chairperson? Rajya Sabha member Rajeev Chandrasekhar asked this same question in parliament on August 8, 2016.

Chandrasekhar asked whether steps had been taken to appoint a chairperson and if so whether a timeline could be announced on when the appointment would be made.

Minister of state for electronics and information technology P.P. Chaudhary replied. “Yes sir, since 2011 continuous efforts have been made… but the appointment could not materialise due to various reasons. No timeframe can be indicated for filling up the post of Chairperson, Cyber Appellate Tribunal.”